Apple, Motorola should just play nice and pay royalties, suggests judge

Judge Posner says an injunction against Motorola would be "catastrophic."

Apple's quest for an injunction against Motorola for alleged patent infringement could have "catastrophic" results, according to a federal judge. The comments came up during a Wednesday afternoon hearing in Chicago, where Judge Richard Posner listened to arguments from Apple as to why an injunction is necessary to prevent Motorola from infringing on Apple's mobile device patents (and vice versa). No decision was made at the hearing, but Judge Posner's comments show that he would rather force the companies to play nice and pay royalties instead of taking their patent war to the next level.

Earlier this month, Posner canceled the jury trial that was scheduled to take place in the pending infringement lawsuit between Apple and Motorola. The two companies had already pruned their lists down to what they considered to be the most essential patents that the other had violated—Apple's list ended up with four, while Motorola's had one. However, Posner rejected the claim that either company should receive damages. Posner ultimately left the door open as to whether there should be injunctive relief, which was the purpose of Wednesday's hearing.

According to Reuters, Posner described the US patent system as "chaos" (and the man's not wrong). He further said restricting the sale of Motorola phones would have "catastrophic effects" on both the mobile device market and consumers. But Apple's attorney, Matthew Powers, argued the company doesn't want to bar the sale of Motorola's devices. Instead, Motorola could simply remove the technology that Apple claims to have patented from its handsets. Posner didn't quite buy it—he suggested it could be better if Motorola simply pays Apple a compulsory royalty.

Meanwhile, Posner scolded Motorola for attempting to obtain its own injunction against Apple for allegedly infringing on a standards-essential patent—one that that Motorola had agreed to license under fair, reasonable, and non-discriminatory (FRAND) terms. "I don't see how you can have injunction against the use of a standard essential patent," Posner said.

Apple, Motorola should just play nice and pay royalties, suggests judge

Well, that Apple has to pay royalties to Motorola isn't a question unless a ruling happens on Motorola's shenanigans regarding exhaustion. Short of that though Apple is certainly on the hook (and in turn Motorola can't say no), the disagreement is over how much. I guess we're still waiting for a ruling on that? The question will be whether Google/MM's asked rate, massively higher then everyone else, is reasonable and whether their theory that it applies to the whole device, rather then merely the technology embodying the claimed invention, is reasonable.

Well, it probably would be better, but I'll be curious to see how exactly it'd be required by law if the patents are not FRAND and non-essential. That seems like it'd be a pretty major change to the patent system, exclusive control (unless voluntarily surrendered or eminent domain) is pretty core.

I think people are missing a key point, Motorola WOULD LOVE TO PAY ROYALTIES in a cross licensing deal.. A royalty agreement would keep them out of the cross hairs of sue happy Apple. Apple DOES NOT WANT to cross license. It would render them unable to go after Motorola as an android device maker.

Sure in a perfect world for Motorola, Apple would have to pay them. In the real world, they would be happy to enter an agreement so Apple could not beat them over the head in their legal war to kill Android.

Fine them both 1 billion and tell them to fuck off its not worth the courts time, just pay your royalties like everybody else.

It'd be nice if posters could actually treat this stuff seriously rather then turning this into another Slashdot/DailyTech.

So why can't they just pay the royalties they owe instead of making the court system waste tax payer money?

Are you really this dense? What, exactly, royalties are owed? To whom? What if Apple doesn't feel like licensing at all? Both sides disagree on the matter and have not been able to negotiate a mutually acceptable solution. That's the Entire. Freaking. Point. They both think the other is in the wrong and are seeking remedies, so this exactly the sort of thing the courts are there to resolve, duh. It's not a waste of the time or money, disagreements in contract resolution and the need for an authoritative decision by an expert, neutral third party is a central aspect of the entire court system and always has been. What exactly do you imagine courts are there for? It's honestly mind-boggling you'd even suggest this isn't an appropriate case for court.

Fine them both 1 billion and tell them to fuck off its not worth the courts time, just pay your royalties like everybody else.

It'd be nice if posters could actually treat this stuff seriously rather then turning this into another Slashdot/DailyTech.

So why can't they just pay the royalties they owe instead of making the court system waste tax payer money?

Apple indeed owes royalties to Googlorola BUT the dispute is about the amount. Googlorola requires insane amounts of money Apple cannot accepts.And Apple can not work around those patent or would need to remove H.264 and cellphone capacity from their iPhone. An iPod Touch that cannot play videos.Those are the SEP (standard essentiel patents).

On the other hand, Apple has NON standard essentiel patents. Patents that correspond to how something work but Googlorola could "in theory" work around. This would make Android awkward or cumbersome but since there is no centralized and normalized way of "interacting with a device", Googlorola "just" have to devise a new way to interact with the device that does not fall under Apple patent. On the contrary, Apple could invent a new cellphone network protocol but it would work nowhere in the world. FOSSPatents call this the "make Android awkward" patents. No one could force Apple to license those patents. Either a patent is valid or it is invalid. The only way you could force someone to license his patents is if this person has pledge to do so in the past, like when patent are standard essential. Googlorola would LOVE to have someone force Apple to license its patents while Apple want to keep them as a distinctive advantage.

Fine them both 1 billion and tell them to fuck off its not worth the courts time, just pay your royalties like everybody else.

It'd be nice if posters could actually treat this stuff seriously rather then turning this into another Slashdot/DailyTech.

So why can't they just pay the royalties they owe instead of making the court system waste tax payer money?

Are you really this dense? What, exactly, royalties are owed? To whom? What if Apple doesn't feel like licensing at all? Both sides disagree on the matter and have not been able to negotiate a mutually acceptable solution. That's the Entire. Freaking. Point. They both think the other is in the wrong and are seeking remedies, so this exactly the sort of thing the courts are there to resolve, duh. It's not a waste of the time or money, disagreements in contract resolution and the need for an authoritative decision by an expert, neutral third party is a central aspect of the entire court system and always has been. What exactly do you imagine courts are there for? It's honestly mind-boggling you'd even suggest this isn't an appropriate case for court.

See below

MrAwax wrote:

ZippyDSMlee wrote:

xoa wrote:

ZippyDSMlee wrote:

Fine them both 1 billion and tell them to fuck off its not worth the courts time, just pay your royalties like everybody else.

It'd be nice if posters could actually treat this stuff seriously rather then turning this into another Slashdot/DailyTech.

So why can't they just pay the royalties they owe instead of making the court system waste tax payer money?

Apple indeed owes royalties to Googlorola BUT the dispute is about the amount. Googlorola requires insane amounts of money Apple cannot accepts.And Apple can not work around those patent or would need to remove H.264 and cellphone capacity from their iPhone. An iPod Touch that cannot play videos.Those are the SEP (standard essentiel patents).

On the other hand, Apple has NON standard essentiel patents. Patents that correspond to how something work but Googlorola could "in theory" work around. This would make Android awkward or cumbersome but since there is no centralized and normalized way of "interacting with a device", Googlorola "just" to devise a new way to interact with the device that does not fall under Apple patent. FOSSPatents call this the "make Android awkward" patents. No one could force Apple to license those patents. Either a patent is valid or it is invalid. The only way you could force someone to license his patents is if this person has pledge to do so in the past, like when patent are standard essential. Googlorola would LOVE to have someone force Apple to license its patents while Apple want to keep them as a distinctive advantage.

If they can't play nice then the courts could in theory figure out fair market value of the patents in questions and then have both pay the amount, its the most fair thing to do since things have come so far.

If they can't play nice then the courts could in theory figure out fair market value of the patents in questions and then have both pay the amount, its the most fair thing to do since things have come so far.

Congratulations, you have managed to grasp one part of what the case is about and recognize that yes, this is exactly the sort of situation the court system is there to resolve.

lol apple license tech does that judge realize he is talking to apple.

Microsoft and Apple have been licensing patents to each other for decades.

I like this quote:

Quote:

"I don't see how you can have injunction against the use of a standard essential patent," Posner said.

It mirrors other, similar, rulings where FRAND patents cannot be used to ban, only force royalty payments.

Quote:

On Friday, the Dutch court found that Samsung's 3G patents were part of essential standards which should be open to license under FRAND and that the two companies should negotiate an agreement.

The ruling is a blow to Samsung, which has filed patent-infringement claims in France and Italy in order to ban the sale of the iPhone, just as Apple has started marketing the latest edition of the popular gadget, iPhone 4S.

I think people are missing a key point, Motorola WOULD LOVE TO PAY ROYALTIES in a cross licensing deal.. A royalty agreement would keep them out of the cross hairs of sue happy Apple. Apple DOES NOT WANT to cross license. It would render them unable to go after Motorola as an android device maker.

Sure in a perfect world for Motorola, Apple would have to pay them. In the real world, they would be happy to enter an agreement so Apple could not beat them over the head in their legal war to kill Android.

No one is missing anything. Apple doesn't have to license to Motorola (excepting the judge says it is compulsory of course), but because Motorola's are standards essential, they have to license to Apple.

I mostly agree with the judge, although I'm trying to understand how he could compel Apple to license its patent to Motorola.

Ignoring for a second whether or not you agree with the patent, since for all intents and purposes the patents are currently valid and Motorola is seen as infringing upon them, Apple's request that Motorola simply remove the infringing functionality seems to be a fairly straightforward right granted by the patent.

Forcing Apple to license a non-FRAND patent would on its face seem to have extraordinary consequences for the patent system as a whole (and ones that could very negatively effect small companies trying to come to market with innovative new ideas).

If they can't play nice then the courts could in theory figure out fair market value of the patents in questions and then have both pay the amount, its the most fair thing to do since things have come so far.

Congratulations, you have managed to grasp one part of what the case is about and recognize that yes, this is exactly the sort of situation the court system is there to resolve.

Its in there somewhere amongst all the fluff, lint and nauseous vacuum in my head. LOL

I mostly agree with the judge, although I'm trying to understand how he could compel Apple to license its patent to Motorola.

Ignoring for a second whether or not you agree with the patent, since for all intents and purposes the patents are currently valid and Motorola is seen as infringing upon them, Apple's request that Motorola simply remove the infringing functionality seems to be a fairly straightforward right granted by the patent.

Forcing Apple to license a non-FRAND patent would on its face seem to have extraordinary consequences for the patent system as a whole (and ones that could very negatively effect small companies trying to come to market with innovative new ideas).

It would be a good thing IMO as you can;t live in a vacuum, once you patent something you HAVE to allow its use at fair market value even if at a premium.

I mostly agree with the judge, although I'm trying to understand how he could compel Apple to license its patent to Motorola.

Ignoring for a second whether or not you agree with the patent, since for all intents and purposes the patents are currently valid and Motorola is seen as infringing upon them, Apple's request that Motorola simply remove the infringing functionality seems to be a fairly straightforward right granted by the patent.

Forcing Apple to license a non-FRAND patent would on its face seem to have extraordinary consequences for the patent system as a whole (and ones that could very negatively effect small companies trying to come to market with innovative new ideas).

Not at all. It can be argued that patents have two "edges" to force innovation; one to force competitors to devices new ways to do old "patented" things, and the other to foster adoption of "new ways" by licensing established patents.

If I patent an incredible technique to transform sea water into wine, there are two ways through which this technology can be used; licensing it from me, or devising a new way to do so, both of which increase human happiness.

I might add that the issues Apple has with FRAND patents right now are that :- Their asked to give a percentage of their device price, which isn't logical since if your device was made of gold or dirt it wouldn't change its usage of telecommunication FRAND patents while the money owed would be very different (like with Apple and its premium priced devices).FRAND patents licensing fees should be a fixed nominal amount, not proportional to a device selling price.

- Then there is the issue of some patents being already licensed by the components producers (qualcom and others), so there is the issue of some people trying to get money from Apple while a licensing fee has already being paid by the people fabricating chips.

- Then there is the fact that number of companies have been trying to get injunction on Apple devices with FRAND patents which is just plain wrong. The idea of the patent system is to protect your ideas, but if you decide to license them so they become a standard, to ensure that you can't abuse them to maintain a grip on a market.

It would be a good thing IMO as you can;t live in a vacuum, once you patent something you HAVE to allow its use at fair market value even if at a premium.

I think the only obligation is that you share the technique with the rest of humanity so that once your exclusive right to use the innovation is expired, everyone else will know how to use it and be free to do so as well.

I'd really have to see a citation or link to a law journal article somewhere that argued that a patent MUST be licensed (and, on a side note... isn't "fair market value" and "at a premium" contradictory?).

I mostly agree with the judge, although I'm trying to understand how he could compel Apple to license its patent to Motorola.

Ignoring for a second whether or not you agree with the patent, since for all intents and purposes the patents are currently valid and Motorola is seen as infringing upon them, Apple's request that Motorola simply remove the infringing functionality seems to be a fairly straightforward right granted by the patent.

Forcing Apple to license a non-FRAND patent would on its face seem to have extraordinary consequences for the patent system as a whole (and ones that could very negatively effect small companies trying to come to market with innovative new ideas).

Not at all. It can be argued that patents have two "edges" to force innovation; one to force competitors to devices new ways to do old "patented" things, and the other to foster adoption of "new ways" by licensing established patents.

If I patent an incredible technique to transform sea water into wine, there are two ways through which this technology can be used; licensing it from me, or devising a new way to do so, both of which increase human happiness.

Or force them to license the patent fairly or not at all and make everyone happy and create more even innovation.

If I patent an incredible technique to transform sea water into wine, there are two ways through which this technology can be used; licensing it from me, or devising a new way to do so, both of which increase human happiness.

I'd argue the benefit is that the rest of humanity will know how to turn sea water into wine, and will be free to do so once your patent expires. Until your patent expires though, I'd expect you'd have the sole right to use the technique (or not). So, you could use the technique to found a new company based on the innovation, you could sell the idea to somebody else, or you could say bugger all and not use it or allow anyone else to use it until the time at which it expired.

It would be a good thing IMO as you can;t live in a vacuum, once you patent something you HAVE to allow its use at fair market value even if at a premium.

I think the only obligation is that you share the technique with the rest of humanity so that once your exclusive right to use the innovation is expired, everyone else will know how to use it and be free to do so as well.

I'd really have to see a citation or link to a law journal article somewhere that argued that a patent MUST be licensed (and, on a side note... isn't "fair market value" and "at a premium" contradictory?).

Well would it be better for us all if they did it like that(a max premium of 30-50%) or have them giving lawyers more money so they can make things more complex so lawyers can make more money?

Just out of curiosity....How many of Apple's "patents" have been tossed out or overturned due to them being a stretch? How many of these patents were/are for things that the courts have turned around and said, "you really can't patent this"?

I can intentionally write up something convoluted enough to claim that my "system", which really truly is nothing functionally revolutionary, is somehow something unique. Like the iPhone interface..... it's NOTHING NEW. An icon-based interface is nothing revolutionary. The idea of a touch-based system isn't anything revolutionary either (iirc, the Microsoft team had been working on similar ideas previous to that). So how in the hell is this some sort of revolutionary product? So much of technology rides on the backs of its predecessors that very little of it is anything really "new".

Some of these.... it'd be like me saying, "My device utilizes the English language in its interface, thus I have a patent on the use of the English language in all devices". I just look at these and think "WTF?".

I'm half tempted to take the patents for some of these items, make a minor change or addendum, labeling that change something vague or "spooky", and then submitting my own patent. Basically "shotgun" the potential variations of that particular product or system and try to narrow the room for the original patent holder to maneuver. After my patent is awarded, suing these companies for violating my patents on the off chance that MAYBE they deviated from what they put on paper (which I can guarantee has happened, because the actual implementation of many of these will not be 100% perfect). That is how ridiculous this system seems to be in many cases.

The patent system truly needs an overhaul. I'm not denying that. I don't want to see people's ideas being stolen and them not receiving fair value for an idea which they contribute to society, but this nitpicking little bullsh*t that I see going on with the patent system...... it needs to stop. This system is being abused instead of offering genuine protection and fair treatment to innovators.

It would be a good thing IMO as you can;t live in a vacuum, once you patent something you HAVE to allow its use at fair market value even if at a premium.

I think the only obligation is that you share the technique with the rest of humanity so that once your exclusive right to use the innovation is expired, everyone else will know how to use it and be free to do so as well.

To the best of my knowledge this is correct. In general there is absolutely no core requirement to license a patent. Quite the contrary, a patent implies exclusivity. The point is that the whole thing must be published, and thus when it expires its available to all, but in the mean time the patent holder gets a government backed monopoly. This would be in contrast to a Trade Secret, where the company attempts to keep something entirely secret. They don't expire, but if the secret leaks then that's that.

It's certainly debatable (just as with copyright) about exactly what the grant period should be, but I don't think compulsory licensing in general is a good idea. FRAND seems like it can do the job just fine, and fairly (so long as it doesn't get gutted legally).

OrangeCream wrote:

If I patent an incredible technique to transform sea water into wine, there are two ways through which this technology can be used; licensing it from me, or devising a new way to do so, both of which increase human happiness.

Erm, what? You seem to have skipped the most immediately obvious way: you actually just create devices yourself and don't license it to anybody. You sell those devices for the life of the patent, and then it expires and generics flood the market.

Sounds like many of these situations are coming to the point where the judicial system will fed up with patent chaos, and reform the patent office themselves to keep companies from bitching about stupid shit in their court rooms.

If I don't license it, and don't use it, then human happiness is the same as it ever was.

No, it's increased because knowledge about the technique now exists, which previously didn't. And you don't get exclusivity forever... the day your exclusivity expires, anyone can use it, thus further benefiting everyone.

Which is why you have to force them to license it or it gets no protection at all. Either you are making a profit off it and thus making more things to make more money or you are stagnating.

You just came up with this brilliant new idea for an engine that fits inside of a car, and will increase fuel efficiency by ten-fold. You'd like to raise capital to start a new company founded on this new idea so you can create and sell these engines.

Why should you be compelled to license the innovation to GM so that GM can make the engines and the profit, rather than you?

If I patent an incredible technique to transform sea water into wine, there are two ways through which this technology can be used; licensing it from me, or devising a new way to do so, both of which increase human happiness.

I'd argue the benefit is that the rest of humanity will know how to turn sea water into wine, and will be free to do so once your patent expires. Until your patent expires though, I'd expect you'd have the sole right to use the technique (or not). So, you could use the technique to found a new company based on the innovation, you could sell the idea to somebody else, or you could say bugger all and not use it or allow anyone else to use it until the time at which it expired.

It's just too bad your idea isn't anything new either and Jesus came up with it years ago. The fact that you're just doing it a new way, does that really make it something unique? What if I come up with a better way to do it? I eliminate steps 2 and 3 of your process and come up with my own system which does it differently? I could claim that YOUR patent means absolutely nothing to my process as mine is "unique" in of itself. After all, I'm not doing EXACTLY what you're doing.... I am technically doing something different. And.... I will claim that what you're doing is nothing really new as Jesus used to do it, and since we don't know his process, you might well have just stolen his idea. Oh... and since the other steps are things that are essentially naturally occurring and happen as a direct result of physics and chemistry and how it works in nature.... you really have no claim to it anyway as those would be "natural conclusions" to anyone who observed these systems (like evaporation of a liquid exposed to a heat source).

OR..... we can come up with a system that says, "I'm using processes identical to steps 1, 4, 5, and 6 of yours. My technique is different in parts 2 and 3, but I have to give you X% of my earnings since I am using these same processes. Patent must be renewed yearly and due to the profound impact this has on mankind, it cannot be renewed beyond 5 years."

WE NEED SOMETHING BETTER THAN THE TRASH WE CURRENTLY HAVE BECAUSE IT DOES NOT SERVE THE MODERN WORLD'S PURPOSE. FFS.... this current patent system was put into effect in a day and age where electricity was freakin magic to most people. We'd probably all be burned at the stake for practicing our witchcraft, talking to other people using our magic talking bricks.

What is the legal basis for FRAND anyway? When Motorola was granted these patents, did it have to sign a contract? With whom, the patent office? Or with other players in the industry? Who were those other players? Or is there a federal law that decreed certain patents as FRAND?

I keep reading about FRAND, and I understand the principle, but I haven't seen anyone explain why and how it's legally binding.

Which is why you have to force them to license it or it gets no protection at all. Either you are making a profit off it and thus making more things to make more money or you are stagnating.

You just came up with this brilliant new idea for an engine that fits inside of a car, and will increase fuel efficiency by ten-fold. You'd like to raise capital to start a new company founded on this new idea so you can create and sell these engines.

Why should you be compelled to license the innovation to GM so that GM can make the engines and the profit, rather than you?

Who says you can't profit? License it for 3% of the cost of the car, or $1k per car, whichever is lower.

Which is why you have to force them to license it or it gets no protection at all. Either you are making a profit off it and thus making more things to make more money or you are stagnating.

You just came up with this brilliant new idea for an engine that fits inside of a car, and will increase fuel efficiency by ten-fold. You'd like to raise capital to start a new company founded on this new idea so you can create and sell these engines.

Why should you be compelled to license the innovation to GM so that GM can make the engines and the profit, rather than you?

Because at the end of the day its best for humanity and we as a whole do not get bogged down in petty inane back biting and he said she said BS? Its more about the elimination of stagnation and to keep nudging innovation forward than anything else. The only thing we are innovating these days is the complexity of the legal system which is lose lose for all...

Which is why you have to force them to license it or it gets no protection at all. Either you are making a profit off it and thus making more things to make more money or you are stagnating.

You just came up with this brilliant new idea for an engine that fits inside of a car, and will increase fuel efficiency by ten-fold. You'd like to raise capital to start a new company founded on this new idea so you can create and sell these engines.

Why should you be compelled to license the innovation to GM so that GM can make the engines and the profit, rather than you?

The sad news is you'll probably have an "accident" should you decide not to sell it to GM..... or to Exxon Mobil.

Which is why you have to force them to license it or it gets no protection at all. Either you are making a profit off it and thus making more things to make more money or you are stagnating.

You just came up with this brilliant new idea for an engine that fits inside of a car, and will increase fuel efficiency by ten-fold. You'd like to raise capital to start a new company founded on this new idea so you can create and sell these engines.

Why should you be compelled to license the innovation to GM so that GM can make the engines and the profit, rather than you?

The sad news is you'll probably have an "accident" should you decide not to sell it to GM..... or to Exxon Mobil.